The Personal Website of Mark W. Dawson

Indemnification

To Indemnify a person is to make amends for or to pay compensation for the harm caused by your actions or inactions. A person has a “duty to rescue” those they put in harm's way. The law provides that those who put someone in harm’s way can be held liable for the failure to rescue any individuals harmed as a result of the peril created. Ordinary negligence is when a person fails to use reasonable care, resulting in damage or injury to another. Gross negligence is defined as a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons or property or both.

Compensation is often the goal in civil lawsuits where one person or entity has harmed another person or entity. With the rioting that occurred as a result of the death of George Floyd by police actions in Minneapolis, which resulted in the injuries and destruction and theft of personal property, the question is who and how to indemnify those that were harmed. In normal circumstances, the persons who inflicted the physical harm, the person who destroyed the personal property, and the person who stole the personal property would be responsible for indemnifying the person who was harmed. Under the circumstance of these riots, it is exceedingly difficult, if not impossible, to identify all those persons who caused the harm. Even if they were identified, it is unlikely that they have the financial resources to compensate the person harmed.

The harm done by the rioters extends not only to the direct losses but to the indirect loss of income for those businesses who have been harmed, as well as the loss of employment for those who worked at these businesses. Often these workers are the people who lived in or near the neighborhoods where the rioting occurred. Indirect harm is also incurred by other businesses and people who supplied the materials and services that the destroyed business utilized. There is also the indirect harm done to those that cannot avail themselves of the goods or services of the businesses that were harmed while they rebuild, or if they rebuild, their business. Who and how is this type of indirect harm to be indemnified? If you indemnify these persons through grants, subsidies, or unemployment compensation, then you have shifted the burden of compensation to the taxpayers who fund these grants, subsidies, or unemployment compensation. A shift from those that caused the harm to those who had no part in the harm. A shift that does not place the financial burden on those that created the harm.

Some would say that the insurance policies of those harmed are responsible for compensating the person harmed. However, insurance does not indemnify the employees of the business, nor those who cannot avail themselves of the goods and services of the business. It is also important to remember that insurance is obtained for losses due to accidental actions. The losses due to the riots were not accidental harm but deliberate actions of the rioters. This reasoning is also fraught with moral, ethical, and financial concerns. One of the purposes of indemnification is to punish and correct the future actions of those that caused the harm. Under this reasoning, you would be punishing and correcting the insurance companies which did not cause any harm, and the actions of the rioters that caused the harm would not be corrected. It also shifts the burden of compensation from those that caused the harm to those who did no harm. This shift is through increased insurance rates for those harmed to cover possible future harm, and to their customers who will pay for these increased insurance prices to cover these increased insurance costs.

However, there is another party that bears some responsibility for the harm inflicted. This other party is the Municipal Governments who had a duty and responsibility to protect all persons from harm. In many cases, the Municipal Governments failed in this duty and responsibility. If failing to control the mobs that rioted, they allowed for the potential of harm. This was gross negligence on their part, gross negligence that needs to be corrected and for which compensation to those harmed must be indemnified. The financial burden of this indemnification must be borne by the people of these municipalities so that they may correct the actions of their elected and appointed officials in the future. These financial burdens should not be borne by any other persons except the people of these municipalities, as the other people had no part in electing or appointing the officials who were grossly negligent. To shift this financial burden to other persons is to tax them without their being represented in these municipal governments. This is antithetical to one of the founding principles of our nation, i.e., No Taxation Without Representation. This financial burden must be borne by the people of the municipality that elected and appointed officials that failed to meet their duties and responsibilities. Therefore, no State or Federal funds should be utilized to compensate those persons harmed by the rioters, but municipal funds must be utilized to compensate those harmed.

We must correct this situation for the future. The rioters, to the fullest extent possible, must be identified and prosecuted to correct their actions and serve as a warning to others that may riot in the future. The elected and appointed officials must always be cognizant of their duties and responsibilities to assure orderly peaceful demonstrations and not allow mob violence. This can only be accomplished by making the elected and appointed officials, and the people who elected them, financially responsible for indemnifying those harmed. To not do so is to not assure “Freedoms, Liberties, Equalities, and Equal Justice for All”.